JUDGE BORROWING MONEY FROM A LAWYERA ruling on 332 the
conduct of a judge of a court of record who borrows money from individual attorneys who
practice in his court would require an opinion outside the scope of the present Canons
and, consequently, the functions of this committee.

LAWYERS LENDING MONEY TO JUDGESWhether or not a
lawyer's lending money to a judge violates the Canons of Ethics is an open question
depending upon the lawyer's intent, determined by the size of the loan and other
surrounding circumstances.

1. Is it improper for an attorney who is also the judge of a court of record to borrow
money from individual attorneys who practice in his court? The loans are sometimes
evidenced by a promissory note but are otherwise unsecured.

2. Is it improper for an attorney to lend money to a judge under the above conditions?

3. Is it improper for an attorney who is a judge of a court of record to pass his
personal check in exchange for cash when he knows at the time that he does not have
sufficient funds on deposit to cover the check? The person cashing the check is not misled
or deceived but knows that in all probability that he will have to hold the check for a
period of time.

Opinion

The first and third of the above questions relate to the conduct of a lawyer who is a
judge, and the second to a lawyer lending money to a judge.

The Texas Canons apply to all lawyers, including judges. The Canons generally relate to
the professional conduct expected of a lawyer in the light of the work and the functions
of a lawyer. Accordingly, they are not well designed to apply to the conduct of a lawyer
while performing the functions of a judge, and for this reason the A.B.A. in 1924 adopted
Canons of Judicial Ethics. The Canons of Judicial Ethics (while now being considered) have
not been adopted in Texas, and the Rules of the State Bar of Texas do not list a violation
of the A.B.A. Canons of Judicial Ethics as a ground for disciplinary action. See Art. XII,
Sec. 8, Rules of the State Bar. Therefore, a violation of the A.B.A. Judicial Canons is
not a ground for disciplinary action, unless otherwise it is professional misconduct
within the definition of Art. XII, Sec. 8. Texas Opinion 47
(1952); but cf. Opinions 116 (1955), 135 (1956) and 151
(1957).

For a judge of a court of record to borrow money from individual lawyers who practice
in his court gives the appearance of impropriety, and this is particularly true where the
debt is not well secured and is more than merely nominal in size and if the borrowing
occurs with any degree of regularity.

Under Judicial Canon 4, the conduct is unethical; see A.B.A. Opinion No. 89. The
conduct also does not conform to Judicial Canon 32, prohibiting the acceptance of favors
by a judge from lawyers practicing before him. Also, see Judicial Canon 24. But,
unfortunately, those Canons have not been adopted in Texas; and the committee finds no
Texas Canon which is violated.

Texas Opinions 116, 135 and 151, listed above, which declared conduct to be unethical
when A.B.A. Judicial Canons were violated surely meant that such conduct was unethical as
not complying with the general standards of propriety to which one should conform even
though he will not be subject to disciplinary action for failing to do so. These opinions
cannot be interpreted as meaning that one may be disciplined in Texas for failure to
conform to A.B.A. Judicial Canons which have not been adopted here (and which may in some
particulars be at cross-purposes with normal Texas procedures). In recent years this
committee has not relied upon the A.B.A. Judicial Canons, and this is as it should be for
the reason that Canons and rules forming the basis for disciplinary action against lawyers
are penal in nature (even though the action is a civil action) and may interfere with the
lawyer's duty to his client unless such Canons and rules are clear and specific. See
Thode, "The Ethical Standards for the Advocate," 39 Texas Law Rev. 575 (1961).

Conceivably in some situations the conduct referred to in Question 1 might violate Art.
159, P.C. If so, the conduct should be considered unethical under Art. XIII, Sec. 2, and
under the "fraudulent or dishonorable" clause of Art. XII, Sec. 8. See opinion
207 (1960). It would seem that any misconduct falling within Art. XII, Sec. 8 is
"unethical." However, the committee does not have sufficient facts to determine
whether Art. 159 is violated, and even if such facts were available, the committee
probably should refrain from making that interpretation of a statute. See opinion 220 (1959). Assuming that there is no violation of Art. 159
or other statute controlling his professional activities, the judge's conduct in question,
however deplorable, does not in Texas violate the minimum requirements of professional
ethics.

Consideration has been given to the question of whether or not the action described in
Question 1 could be considered "fraudulent or dishonorable conduct." The
committee's conclusion, however, is that the term "fraudulent or dishonorable
conduct" must not be applied too broadly and should be limited to (in addition to the
professional regulatory laws referred to in Sec. 2) conduct which constitutes actionable
fraud and conduct which constitutes the commission of an infamous crime or a crime of
moral turpitude. The remainder of Sec. 8(a) seems to indicate that this was the intention
of those framing the rule, leaving Sec. 9 to deal with the effect of a criminal
conviction. Following this line of reason, the committee believes that, though the judge's
action may well not come up to the standards which should be set for a lawyer acting in
that position, it is not unethical in the sense that disciplinary action can follow.

With reference to the second question, the committee does not think that a lawyer who
lends money to a judge necessarily violates the Canons of Ethics. Canon 3 does not condemn
all hospitality and attention to a judge. Only "Marked attention and unusual
hospitality . . . should be avoided" where such acts constitute "attempts to
exert personal influence on the court." The committee feels that, in the matter of a
lawyer's lending money to a judge, the basic problem is one of the intent of the lawyer
and, as it has in this instance no knowledge of the size of the loans in question or other
surrounding circumstances, it must conclude that the question is an open one as to whether
or not Canon 3 was violated.

From the wording of Question 3, it is to be assumed that the passing of the check in
question does not constitute theft by false pretenses, passing hot checks, or the like.
Therefore it would seem to the committee that this is just another device for borrowing
money. This makes Question 3 substantially the same as Question 1. Canons 3 and 29 are
not applicable because they are directed toward the lawyer dealing with the judge and not
toward the judge. As stated in answering Question 1, the minimum requirements of the Texas
professional ethics have not been violated even though one may feel that an ethical judge
should not conduct himself in this way and one may also feel that the laws should provide
for removal of a judge who so conducts himself.

Whether the judge's conduct mentioned in Question 1 and 3 constitutes "official
misconduct" within the meaning of Art. XI, Sec. 6, Texas Constitution, is not before
this committee. (9-0.)